Predominant/Dominant Aggressor Law
Turner v. State, 292 So.3d 1006 (2020)
Forensic nurse testified subconjunctival hemorrhage in the left eye, hypodensity area in brain, vertebrae defect and chin abrasion all consistent with strangulation.
Court of Appeals found trial court abused its discretion in permitting the nurse to testify in those areas as being speculative and unreliable. Scope of testimony went too far.
Trial court also prevented a defense expert, Dr. Truly, from testifying for the defense as untimely. The Court of Appeals also found that was an abuse of discretion.
Error was prejudicial. The case was reversed and remanded for new trial.
Comment: This was a case of first impression. Strangulation qualifications of nurse were unclear from the record; it’s also unclear why neither treating physician nor radiologist testified. First negative case concerning nurse’s testimony on strangulation.
Lewis v. State, 215 So.3d 994 (2017)
The victim was cooperative at trial – the defendant choked her with both hands and applied continuous pressure. His grip got tighter and she was unable to breathe. She lost consciousness.
The victim escaped and drove herself to the hospital. She was very upset and had red marks to face, ear, and neck. Redness in each of her eyes – later diagnosed as petechiae. CTA negative.
Police were called. The defendant was contacted. Partial admissions, but mostly claimed self defense. The defendant had scratches on his arm. A law enforcement officer believed this was consistent with the victim defending herself.
Dueling medical experts (physicians) testified differently about petechiae. The treating physician said it was petechiae.
The defense expert testified it wasn’t petechiae but conjunctivitis due to sinuses. Nevertheless, the jury found the defendant guilty. He was sentenced to seven years.
The defendant appealed on sufficiency – no obstruction. Evidence overwhelming.
Kirk v. Mississippi, 160 So.3d 685 (2015)
The defendant was sentenced to 20 years for habitual offender. He strangled his wife twice in front of a 2-year-old. The first time, he strangled the victim until she was unable to breathe; the second time, he strangled her until she was unable to see or breathe and she lost consciousness. The victim could not scream. The victim fled and called 911.
The police officer saw red marks and testified those marks were consistent with strangulation. The victim also complained of a sore throat.
The defendant denied assaulting her and claimed marks were self-inflicted. The victim was not to be believed because past use of drugs. The defendant waived his right to contest the expert testimony of officer.
There was sufficient evidence of strangulation even without a medical expert: 911 tape, witness, and officers observed red mark to neck.